On 12 September 2022, the Gambling Commission announced that it had fined Betway Limited more than £400,000 for advertising its services on sections of a website aimed at children. The Commission has warned all operators that they will take any breach of rules aimed at protecting children very seriously, regardless of whether such breach was deliberate.
As a result of its enquiries, the Commission discovered that advertising for Betway had appeared on the children’s pages of West Ham United Football Club’s website.
On one occasion between 14 April 2020 and 6 November 2021, Betway’s logo (which was clickable and linked to their website) had been displayed on a page which allowed users to print out a teddy bear to colour in. On another occasion between 24 October 2021 and 15 November 2021, the same clickable logo had appeared on the ‘Young Hammers at Home’ webpage.
There was no suggestion that Betway was deliberately targeting children or that any children had actually been able to place bets with Betway as a result of the ad.
Breach of licence conditions
All gambling operators are required by their gambling licence to comply with the Licence Conditions and Codes of Practice. Social responsibility code provision 5.1.6 requires operators to ensure that all marketing of their products and services is undertaken in a “socially responsible manner”. In addition to other specific requirements, operators are also required by this provision to comply with the CAP Code (the non-broadcast code, which is relevant to this Betway action) and the BCAP Code (the broadcast code). Both advertising codes include specific provisions on gambling advertising, with a focus on such ads being socially responsible, particularly in regards to protecting children.
CAP provides detailed guidance on the protection of children and young people, which is intended to help operators interpret the advertising codes. In particular, the guidance states that gambling advertising must not “appear in media for children or young people”. The advertising regulator’s approach to identifying such media is quite straightforward, in that it will consider the “indicators of the media’s intended audience”. For example, if the website describes itself as offering games and activities for children, this will be regarded as media for children.
The guidance specifically deals with the scenario of a gambling ad appearing on a part of a website for under-18s, as was the case with Betway. Where this happens, the advertising regulator will consider the general audience of the website in line with its approach described above. However, the guidance makes clear that operators should take particular care to ensure that ads are not placed on parts of the website that are dedicated to under-18s. The guidance then goes on to give the example of a football club’s website, stating: “A football club’s website might have a strongly adult audience in general, but it is inappropriate to place an advertisement in pages dedicated to younger supporters. They are considered children’s media for the purposes of the CAP Code rule on the basis of their intended audience”.
On that basis, it is likely that the advertising regulator will find that any gambling ad placed on parts of a website that are targeted at children or young people will breach the CAP Code. The Gambling Commission is likely to take a similar approach when assessing ads. And, in any case, the Commission is very likely to consider that gambling ads placed on websites or sections of websites that are targeted at children are not socially responsible.
In addition to this, although not strictly relevant to this enforcement action, ordinary code provision 5.1.8 states that operators should also comply with industry codes on advertising, which includes the Gambling Industry Code for Socially Responsible Advertising.
Where an operator fails to comply with any one of these provisions, they will be deemed to have breached their gambling licence.
Enforcement action against Betway
The Gambling Commission found that, by placing ads on media for children, Betway had breached social responsibility code provision 5.1.6, and had therefore breached its gambling licence. This was on the grounds that Betway had: (i) not undertaken the advertising of its gambling products and services in a socially responsible manner, and (ii) not complied with the CAP Code, which was relevant to advertising on a website.
The Commission noted that Betway had taken action to remedy the breaches and had cooperated with all stages of the investigation. Nevertheless, the Commission stressed that protecting children from gambling harm is “at the heart of what [they] do” and, therefore, breaches of the relevant licence conditions will be treated very seriously, regardless of whether an operator intended for their ads to appear in such media.
On that basis, the Commission ordered Betway to pay a penalty of £408,915 for the breaches.
In its announcement, the Commission encouraged all operators to ensure that they have sufficient processes in place to make sure that websites or parts of websites that are directed at children do not show any gambling ads. Operators should take responsibility for ensuring that the processes are effective.
Social responsibility code provision 1.1.2 states that operators are “responsible for the actions of third parties with whom they contract for the provision of any aspect of the licensee’s business related to the licensed activities”. Operators must ensure that any such third parties are bound contractually by the Licence Conditions and Codes of Practice, and that the operator can terminate the agreement where the third party is found not to have complied with the Commission’s licensing objectives and/or the licence conditions.
Therefore, operators must pay particular attention to the third party service providers they use to serve ads. As well as ensuring that the contracts already in place with such third parties require them to comply with the licence conditions, operators might consider drawing particular attention to duties around protecting children, and ask for such third parties to carry out spot checks in relation to ad placement.